IV.  Conclusion

hy make an advocacy shift, then, if not because attorney materials are free and casebooks are not, or because the Court itself asks for these as blueprints to help it construe our Constitution? Looking more closely at lawyering corrects, at least fractionally, several ways we understand our Constitution.

     The shift reveals more fully the process of lawyering and judging. It is the adage that “if a man would be a soldier, he’d expect of course to fight.” Future lawyers learn best by listening to other lawyers win and lose.134 An advocacy focus also counteracts tendencies to reduce law to typecasts of judges, to enlargen it to overcomplex doctrine, or to understand it as immutable principle—three generalizations that misdirect towards cynicism, “sportiveness of wit,”135 and incivility, respectively. Advocacy materials juxtaposed with outcomes reinforce a contrary law-sustaining truth: that cases, at all levels, are won by attorneys who show  utmost frankness and assert positions of fact, law, and policy that judges come to trust.136 There may be no more exalted example of this axiom for interpretative success than these minutes of upending federalist argument, submitted by Attorney Abe Fortas, successfully seeking to overturn the perceived states-rights logic behind Betts v. Brady137 which deprived accused persons of appointed counsel except in special circumstances.138

     Lessons in proficiency do not stop, of course, with this Article’s map of how adversaries try persuasively to assemble propositions of fact, law, and policy to impose a favored constitutional interpretation on us all. Smaller lessons abound. Arguments must be clear.139 Persuasion exists just in telling the Court that the actions under review ought to conform to earlier judicial decree.140 A first question is frequently a cocked pistol, prefiguring a constitutional outcome.141 Answers often must be given to questions that are hard to understand.142 One must anticipate opponents who will evade complexity with parables.143 A rebuttal rejoinder should be a final nail hammered in.144 Law professors indeed speak obscurely.145 And, as one more lesson among many, law allows laughter.146

     Finally, incorporating advocacy corrects against constitutional immodesty for the timeless reason that spoken argument makes truth more disturbing. Poets like Toni Morrison remind us that words either crumble in the mouth like ashes or, like birds, they sing, they fly.147 This Article echoes the same reminder that our Supreme Court must hear each side’s contradicting constitutional story before issuing its own pragmatic and usually reconciled outcome. The value of this constitutional process is easy to hear, and it is further proven by its negative, because it is undeniably a loss that we cannot hear the government’s clenched-teeth constitutional arguments against Plessy and Korematsu, whose Supreme Court oral arguments are missing.

     In this regard, future generations will likely study as much how we sought to persuade the Court into injustice as they will the decisional injustice itself.148 Students obtain a more nuanced perspective when they hear viewpoints embedded in situational difficulty,149 or pierced by the multifaceted angles litigants and amici offer. Responsibility properly extends back to an idea’s proponent,150 or settles between extreme positions that were rejected. By contrast, responsibility lying with the Court alone is sharpened, and should be, if one learns that refutations of its announced constitutional rule went unanswered by a Court more inclined to guard its law than to question it.

     This observation circles back to my beginning, reiterating that constitutional ideas must be spoken to before they explain themselves.151 The Constitution was authored long ago, and questions today confront us with when, whether, and how to expound on it. We, the People, are skeptical and discuss these questions with disagreement. That debate is societal constitutional controversy—unhinged, except to personal conscience or political purpose. Decisional constitutional controversy is what judges do, and purports to be more constrained.

     What is in-between—and today mostly missing from analysis—is the controversy between the lawyers, whose constitutional discourse is more hinged than the first, but less than the other. We should watch here more than we do because it is in this middle that one first sees whether and how our government grows tyrannical fighting tyranny152—a raw viewpoint often smoothed over in decision. Here, crucially, one can assess the full public record of vigilance by the Court, wondering, cajoling, and encouraging,153 or chiding, blaming, and checking.154 And here one hears the grey zones of cases spoken about, whisperingly155 or daringly,156 because lawyers and Justices in discourse are not bound by any academic modality to eschew ideas that may sound too unruly for a printed page.157

     In this uncensored state, we hear what distinguishes the profession and rule of law in our Supreme Court from those of so many other countries and courtrooms—namely that lawyers expect that the Court will acknowledge their facts, perceive their future, and adopt their interpretative constitutional rule.158 By contrast—and by design—decisions have finality. Sometimes, even, decisions let hard arguments go unanswered,159 trying to stay tidy, but playing high stakes that what has been overlooked may be the better future—advocacy materials should be re-examined for this reason also.160

    There is a better way to learn law and lawyering. The way is more instructive and less expensive; more firsthand, less formal; more complete with circumstance, less constricted as to possibility. Practically, it helps one avoid being outwitted; or, if outwitted, to relax and manage the crisis.161 As Emily Dickinson tells us, “To fill a Gap Insert the Thing that caused it.”162 There is a gap in how we understand the Constitution, and we should insert the thing that caused it.

 

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134.See generally Edward H. Warren, Spartan Education (Houghton Mifflin Co. 1942) (discussing effective teaching methods for young lawyers).

135.1 Wilbourn E. Benton, 1787: Drafting the U.S. Constitution 30 (1986).

136.Cf. Recording of Oral Argument on Mar. 3, 2004, at clip 142, Sabri v. United States, 541 U.S. 600 (2004) (No. 03-44) (admitting “I don’t know” prompts Chief Justice Rehnquist to observe: “that’s a very candid answer”).

137.316 U.S. 455 (1942).

138.Hear Recording of Oral Argument on Jan. 15, 1963, at clip 143, Gideon v. Wainright, 372 U.S. 335 (1963) (No. 155), (“I believe that those [federalism] principles are misapplied here . . . because a true regard, in my judgment, Mr. Justice Harlan, for federalism here, means that this Court will lay down a principle, will establish a principle, and that this Court will not exercise the kind of minute, detailed, ex post facto supervision over state court trials that you have been exercising for these past years and which in my opinion is the most corrosive possible way to administer our federal-state system . . . . I should like to restate that very simply and very plainly, your Honor. I believe that Betts against Brady does not incorporate a proper regard for federalism. I believe that Betts against Brady, laying down as it does, the principle of case by case supervision by the federal courts of state criminal proceedings is antithetical to federalism. Federalism requires, in my judgment, if your Honors please, that the federal courts should refrain, so far as possible, from intervention in state criminal proceedings. And certainly that where intervention is necessary because of a constitutional principle that that intervention should be exercised in the least corrosive, the least aggressive fashion possible.”).

139.See, e.g., Transcript of Oral Argument on May 13, 1952, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Nos. 744, 745), reprinted in 48 Landmark Briefs and Arguments, supra note 1, at 958–59:

 

MR. JUSTICE FRANKFURTER: You say that I can go any time to pick all the apples and cherries I want, and I do not need permission to do that at any special time.

 

MR. PERLMAN: That is not the Government’s position.

 

MR. JUSTICE FRANKFURTER: Then I do not understand it.

 

MR. PERLMAN: I am sorry.

 

MR. JUSTICE FRANKFURTER: I am sorry, too.

 

Id. As valuable, lawyers must listen to lawyers who deftly recover from uncertainty, who do not over-promise, and who convey a true desire to clarify a point of inquiry. Hear, e.g., Recording of Oral Argument on Jan. 17, 1996, at clip 144, United States v. Virginia, 518 U.S. 515 (1996) (No. 94-1941) (understanding and agreeing with a question from the Court, the attorney asks to restate the question for clarification); id. at clip 145 (“I think that I am saying that, and if I’m not answering the question, I’m not understanding the question.”).

140.Hear, e.g., Recording of Oral Argument on Mar. 30, 1976, at clip 146, Jurek v. Texas, 428 U.S. 262 (No. 75-5394), vacated, 429 U.S. 875 (1976) (describing actions taken by the state to comply with the Court’s earlier decision); id. at clip 147  (“So I went over and worked. We tried to pour over Furman. We tried to understand it. What did Justice Berger say when he said he might not like a mandatory sentence. What was the right thing to do?”).

141.Hear Recording of Oral Argument on Nov. 8, 1994, at clip 148, United States v. Lopez, 514 U.S. 549 (1995) (No. 93-1260) (assessing whether in 1990 Congress had exceeded Commerce Clause powers for the first time in more than half a century, the Court’s purpose to recalibrate came in the first question); hear also Recording of Oral Argument on Apr. 19, 2000, at clip 149, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525) (in assessing whether Congress could overrule Miranda, the Court’s decisional answer was forecast by this opening observation that Miranda had been applied as a constitutional imperative against states).

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142.Hear, e.g., Recording of Oral Argument on Apr. 3, 1962, at clip 150, Engel v. Vitale, 370 U.S. 421 (1962) (No. 468) (admitting to the Court that the attorney lost the question in the exchange); Recording of Oral Argument on Feb. 26, 1974, at clip 151, DeFunis v. Odegaard, 416 U.S. 312 (1974) (No. 73-235) (acknowledging that the attorney forgot the question, leading to “You have my permission to forget it.”). Cf. Transcript of Oral Reargument on Oct. 9, 1961, Baker v. Carr, 369 U.S. 186 (1962) (No. 6), reprinted in 56 Landmark Briefs and Arguments, supra note 1, at 691 (responding to an attorney comment that a question was difficult, the attorney is asked, “[d]o you want me to put you easy ones?”).

143.Hear Recording of Oral Reargument on Oct. 9, 1961, at clip 152, Baker, 369 U.S. 186 (No. 6) (commencing oral argument by comparing the Solicitor General with the priest and Levite who passed by the Good Samaritan).

144.Hear Recording of Oral Argument on Apr. 26, 2000, at clip 153, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (No. 99-699) (“If you have to dissect each butterfly in order to classify it, there are not going to be many butterflies left.”), hear also Recording of Oral Argument on Feb. 22, 2005, at clip 154, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108), (“[T]he four words I think that this Court should consider—and I’m not going to tell you the four since my red light is on.”).

145.Hear Recording of Oral Argument on Oct. 30, 1979, at clip 155, Rhode Island v. Innis, 446 U.S. 291 (1980) (No. 78-1076) (attorney cites a law review article proposing the “rationale approach” to Miranda, but quickly then is obliged to concede that, stripped of its academic phraseology, the article advocates an “overruling approach” to Miranda). Cf. Recording of Oral Argument on Jan. 17, 1968, at clip 156, Duncan v. Louisiana, 391 U.S. 145 (1968) (No. 410) (sharp questions to an attorney who claims an article was “cited,” “recognized,” and “used as authority” by the Court).

146.Acknowledging advocacy enlivens because lawyers balance the solemnity of judges. There are more than ten thousand “laughter” moments in the last decade of argument in the Supreme Court (easily searched on Westlaw’s SCT-ORALARG” database or Lexis/Nexus’ “U.S. Trans” databases), but scholarship discusses almost none. Beyond mere lightness, these moments are significant, often bearing out the maxim that “a joke’s a very serious thing,” hear, e.g., Recording of Oral Argument on Oct. 5, 1998, at clip 157, Mistretta v. United States, 488 U.S. 361 (1989) (No. 87-7028) (recovering from courtroom laughter about judges who “suffered an increase” in salary, the attorney discusses whether presidential appointment of federal judges to the U.S. Sentencing Commission might infringe independence), or, in other cases, that one step from the sublime indeed may be the ridiculous. Hear, e.g., Recording of Oral Argument on Nov. 29, 1976, at clip 158, Wooley v. Maynard, 430 U.S. 705 (1977) (No. 75-1453) (noting amidst courtroom laughter the irony that New Hampshire license plates “Live Free or Die” are made in state prisons).

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148.See Judith Shklar, Giving Injustice Its Due, 98 Yale L. J. 1135, 1142–45, 1151 (1989) (investigating two different kinds of injustice).

149.See Transcript of Oral Argument on May 12, 1952, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Nos. 744, 745), reprinted in 48 Landmark Briefs and Arguments, supra note 1, at 915: 

 

MR. PERLMAN: [W]e submit that the source of the President’s power must be considered in the light of the circumstances of this case . . . .

 

MR. JUSTICE FRANKFURTER: ‘The source of the President’s power must be considered in the light of the circumstances’? It is one thing to say circumstances, but you do not derive the existence of a power from circumstances.

 

MR. PERLMAN: That is right. We say that the source must be there, and that from the source comes the power. I did not say that you create power by the circumstances.

 

MR. JUSTICE FRANKFURTER: I thought you did.

 

Id.; hear also Recording of Oral Argument on Apr. 25, 2001, at clip 159 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (Nos. 00-596, 00-597) (attorney breathlessly attempts to distinguish the problem of fast-food malnutrition from cigarette use); Recording of Oral Argument on Dec. 2, 1997, at clip 160, Brogan v. United States, 522 U.S. 398 (1998) (No. 96-1579) (attorney who cites eight appellate courts supporting the interpretation put forth is told, “That’s a fair point . . . they ought to be here with you.”).

150.Reconsider the segregationist argument in Brown v. Louisiana, 383 U.S. 131 (1966), and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), given earlier in this Article. See supra notes 4–7, 9–11 and accompanying text.

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151.Perhaps with purposive ambiguity, Justice Frankfurter had this exchange with Solicitor General Perlman in Youngstown:

 

MR. JUSTICE FRANKFURTER: Doctor Johnson said, you know, you can give a person knowledge, but not understanding.

 

MR. PERLMAN: If that is meant for me, it is a dirty dig.

 

MR. JUSTICE FRANKFURTER: It is meant for me.

 

Transcript of Oral Argument on May 12, 1952, Youngstown, 343 U.S. 579 (Nos. 744, 745), reprinted in 48 Landmark Briefs and Arguments, supra note 1, at 916.

152.Hear, e.g., Recording of Oral Argument on Feb. 24, 1972, at clip 161, United States v. U.S. Dist. Court, 407 U.S. 297 (1972) (No. 70-153), (uninterrupted challenge to arguments for executive wiretap authority as “the precise arguments . . . the Fourth Amendment was designed to eliminate”); Recording of Oral Argument on Apr. 10, 1967, at clip 162, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395) (repeatedly interrupting Virginia’s vague answers and “labels” to compel acknowledgment and answer to the question, “[I]s there any doubt in your mind that the object of these statutes, the basic premise on which they rest, is that the white people are superior to the colored people and should not be permitted to marry . . . because it might pollute the white race?”).

153.Hear, e.g., Recording of Oral Argument on Apr. 29, 1964, at clip 163, Escobedo v. Illinois, 378 U.S. 478 (1964) (No. 615) (“[w]hen you make constitutional doctrine you try to look ahead a little bit and see where you are going . . . that’s the core of a very difficult problem; these cases are easy to decide if you just decide them as a case and don’t care where you are going, where you are looking, what the consequences are”).

154.Hear, e.g., Recording of Oral Argument on Mar. 30, 1992, at clip 164, New York v. United States, 505 U.S. 144 (1992) (Nos. 91-543, 91-558, 90-563) (sharply questioning whether state advocate would urge the same position applied to other circumstances, reprimanding that “it’s a principle we have to deal with, not some individual scheme”).

155.Hear, e.g., Recording of Oral Argument on Jan. 10, 1989, at clip 165, United States v. Sokolow, 490 U.S. 1 (1989) (No. 87-1295) (attorney finishes his challenge to the constitutionality of DEA drug profiling by asking softly whether any empirical data exist to justify losing “[t]he very basis of being an American. . . . the right to be left alone, to be free to go where we want to go without worrying about intrusions . . . . I would only beg the Court to consider that we are giving up a very basic, basic right for returns we have no knowledge”).

156.Hear, e.g., Recording of Oral Argument on July 8, 1974, at clip 166, United States v. Nixon, 418 U.S. 683 (1974) (Nos. 73-1766, 73-1834) (attacking special prosecutor as “a constitutional anomaly” inconsistent with presidential control over the Executive).

157.Hear Recording of Oral Argument on Oct. 5, 1988, at clip 167, Mistretta v. United States, 488 U.S. 361 (1989) (Nos. 87-7028, 87-1904) (defending the constitutionality of restrictions on judicial powers to sentence, Solicitor General Fried boldly observes that because “the doctrine of separation of powers is supposed to have something to do with liberty . . . it would be huge irony if this Court invalidated a statute whose global effect is not to increase but sharply to curtail the prerogatives” of its own judicial branch); Recording of Oral Argument on Dec. 10, 2003, at clip 168, Vieth v. Jubelirer, 541 U.S. 267 (2004) (No. 02-1580) (interrupting claim for Court intervention into state redistricting plan, Chief Justice Rehnquist interjects, “the Constitution doesn’t ever use the word democracy”).

158.Hear, e.g., Recording of Oral Argument on Apr. 17, 2002, at clip 169, Hope v. Pelzer, 536 U.S. 730 (2002) (No. 01-309) (“What should be the rule that you say was violated here. If we write out the opinion . . . we say the rule . . . is and we have to fill in the blank, what is that rule?”); Recording of Oral Argument on Jan. 11, 2000, at clip 170, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29) (“[T]his Court has had what I think is an unfortunate 150 or 200 year history in trying to draw some kind of line as you are between local and interstate effects. Most of those have failed. What’s your line?”); Recording of Oral Argument on Feb. 22, 1971, at clip 171, Cohen v. California, 403 U.S. 15 (1971) (No. 299) (impassioned closing requests that the Court “make clear” and “go further,” beyond only a favorable outcome, to say that whole categories of speech are protected by the First Amendment). Cf. Recording of Oral Argument on Mar. 30, 2004, at clip 172, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (Nos. 03-339, 03-485) (“Mr. Clement, you have a number of strings to your bow. Is one of them more important than the others?”).

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159.Compare Recording of Oral Argument on Jan. 13, 1997, at clip 173, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853) (oral argument poses difficult and explicit questions about whether trial judges could schedule court appearances when the President has conflicting appearances, such as an overseas NATO conference), with Clinton, 520 U.S. at 709 (distinguishing the immunity from suit conferred in Nixon v. Fitzgerald, 457 U.S. 731 (1982), yet in conclusion enjoining trial judges who schedule litigation to adhere to the Fitzgerald “tradition . . . of giving the ‘utmost deference to Presidential responsibilities’”).

160.Compare Recording of Oral Argument on Oct. 5, 1988, at clip 174, Mistretta, 488 U.S. 361 (Nos. 87-7028, 87-1904) (Attorney Alan Morrison acknowledging that various constitutional infirmities with the Sentencing Guidelines were previously identified by lower courts but were not being presented to the Supreme Court), with United States v. Booker, 543 U.S. 220, 244 (2005) (invalidating aspects of the U.S. Sentencing Guidelines on Sixth Amendment grounds, almost twenty years later). Indeed, hindsight inquiry will reveal irony as often as missed opportunity. The Court’s Tenth Amendment reversal of direction announced in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), was relief that the United States rejected during oral argument, hear Recording of Oral Reargument on Oct. 1, 1984, at clip 175, Garcia, 469 U.S. 528 (Nos. 82-1913, 82-1951) (in response to concerned questions from Justice Blackmun about ongoing viability of the Court’s existing “traditional governmental function test,” Solicitor General Rex Lee emphasizing “we think the entire approach is sound”). Yet, ten years earlier, in argument preceding National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia, 469 U.S. 528, the Justices pressed counsel with the political-process argument that would become constitutional doctrine in Garcia. Hear Recording of Oral Reargument on Mar. 2, 1976, at clip 176, Usery, 426 U.S. 833 (Nos. 74-878, 74-879).

161.Hear, e.g., Recording of Oral Argument on Oct. 15, 1991, at clip 177, Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (No. 90-1059) (likening artists to felons who embellish on their crimes, Justice Scalia relates “a hypothetical in law school” but, amidst laughter, admits he forgets the answer); Recording of Oral Argument on May 14, 1990, at clip 178, United States v. Eichman, 496 U.S. 310 (1990) (Nos. 89-1433, 89-1434) (“Well, I say it’s not this case anyway. I guess that’s the best way to worm out of this. If I had to worm out, that’s the way I’m going. It’s not this case. It’s a hypothetical, and it’s not this case.”).

162.Emily Dickinson, Poem 546, in The Complete Poems of Emily Dickinson 266 (Thomas H. Johnson ed., 1997).